As you consider the use of surveys to prove or disprove trademark infringement, consider a highly qualified consulting firm like Keegan & Donato Consulting that offers vast experience in the full spectrum of trademark infringement matters.
Keegan & Donato Consulting is a specialty research consultancy that designs and executes consumer-based surveys for attorneys and their clients across the nation. Principals Mark Keegan and Tony Donato have over 30 years of cumulative experience in the field of consumer research and have extensive testimony experience.
The firm has been engaged by top IP litigation firms, such as Debevoise & Plimpton LLP in New York, Reed Smith LLP in Chicago, Girard Gibbs LLP in San Francisco, and Giampolo Law Group in Philadelphia, as well as other leading firms from coast to coast.
Our Consumer Survey Specialties
Keegan & Donato Consulting designs and executes consumer surveys to ensure that the evidence you introduce in your trademark infringement case will hold up to scrutiny from courts and opposing experts.
Confusion: One of the foremost purposes of a trademark is to prevent consumer confusion. With a mounting number of brands competing for share of mind in the marketplace, however, some confusion is inevitable. A well-executed standard or custom survey from Keegan & Donato Consulting can help you assess whether consumers are indeed confused.
Secondary Meaning: Descriptive marks are not typically protectable as trademarks unless they have acquired a secondary meaning. We design consumer research surveys that target relevant consumers in your client’s market and help you determine the extent to which consumers associate a contested mark with one or more sources.
Strength of Mark: The “strength” of a mark has a bearing on the legal protections available to a mark holder. In general, fanciful, arbitrary, and suggestive terms are considered inherently distinctive and are afforded various trademark protections. Descriptive marks are unlikely to achieve trademark protection because they lack sufficient distinction to be associated by consumers with one source.
Dilution: Trademark dilution occurs when an infringing party uses a famous mark in a way that tarnishes the mark’s reputation for quality or dilutes its strength by blurring its distinctiveness. Consumer recognition of a famous mark can be measured directly by a survey.
Trade Dress: Trade dress, like a trademark, is protectable under the Lanham Act. Conducting a consumer survey can help you gather the evidence to prove whether the trade dress in question has established secondary meaning or is likely to cause confusion in the marketplace.
Why You Need Qualified Survey Experts
If you are debating the value of hiring the most qualified survey experts in support of your trademark infringement case, consider Malletier v. Dooney & Bourke, Inc., 525 F.Supp.2d 558, 569-70 – Dist. Court S.D. New York (2007), in which the court excluded the evidence and testimony of all three of the plaintiff’s likelihood of confusion and dilution survey experts along with two of the defendant’s three experts on the basis that the surveys were unreliable, plagued by significant methodological flaws, and that “any probative value was substantially outweighed by the danger of unfair prejudice and misleading the jury.”
Keegan & Donato Consulting’s litigation surveys have been accepted as evidence in matters involving a broad range of products and services. We also have extensive testimony experience.
To explore the use of surveys to prove or disprove trademark infringement, get in touch with Keegan & Donato Consulting at (914) 967-9421. We will work within your budget to deliver the survey evidence you need.